THE CODE OF CRIMINAL PROCEDURE
Act 175 of 1927
768.32 Indictment for offense consisting of different degrees or for offense specified in MCL 333.7401 and 333.7403; finding of jury or judge; instructions.
Sec. 32.
(1) Except as provided in subsection (2), upon an indictment for an offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment and may find the accused person guilty of a degree of that offense inferior to that charged in the indictment, or of an attempt to commit that offense.
(2) Upon an indictment for an offense specified in section 7401(2)(a)(i) or (ii) or section 7403(2)(a) (i) or (ii) of the public health code, Act No. 368 of the Public Acts of 1978, being sections 333.7401 and 333.7403 of the Michigan Compiled Laws, or conspiracy to commit 1 or more of these offenses, the jury, or judge in a trial without a jury, may find the accused not guilty of the offense in the degree charged in the indictment but may find the accused guilty of a degree of that offense inferior to that charged in the indictment only if the lesser included offense is a major controlled substance offense. A jury shall not be instructed as to other lesser included offenses involving the same controlled substance nor as to an attempt to commit either a major controlled substance offense or a lesser included offense involving the same controlled substance. The jury shall be instructed to return a verdict of not guilty of an offense involving the controlled substance at issue if it finds that the evidence does not establish the defendant's guilt as to the commission of a major controlled substance offense involving that controlled substance. A judge in a trial without a jury shall find the defendant not guilty of an offense involving the controlled substance at issue if the judge finds that the evidence does not establish the defendant's guilt as to the commission of a major controlled substance offense involving that controlled substance.
History: 1927, Act 175, Eff. Sept. 5, 1927 ;-- CL 1929, 17325 ;-- CL 1948, 768.32 ;-- Am. 1978, Act 77, Eff. Sept. 1, 1978 ;-- Am. 1988, Act 90, Imd. Eff. Mar. 30, 1988
FormerLaw Notes:
See section 16 of Ch. 161 of R.S. 1846, being CL 1857, § 5952; CL 1871, § 7818; How., § 9428; CL 1897, § 11789; and CL 1915, § 15616.
Notes of Decisions
Cited in
144
cases (
20 in the last 5 years), 1955–2026 · leading case:
People v. Cornell, 646 N.W.2d 127 (Mich. 2002).
People v. Cornell, 646 N.W.2d 127 (Mich. 2002).
· cites it 64× “[MCL 768.32] simply speaks to the possibility that the jury may find the accused not guilty of an offense in the degree charged in the indictment while still allowing a guilty verdict of any inferior degree of such offense.”
People v. Nyx, 734 N.W.2d 548 (Mich. 2007).
· cites it 128× “[18] In summarizing Justice Coleman's dissent in Jones, we noted that Justice Coleman construed MCL 768.32 to only permit consideration of "necessarily included lesser offenses.”
People v. Mendoza, 664 N.W.2d 685 (Mich. 2003).
· cites it 60× “MCL 768.32 MCL 768.32 governs inferior-offense instructions.”
People v. Smith, 731 N.W.2d 411 (Mich. 2007).
· cites it 27× “STANDARD OF REVIEW Whether statutory involuntary manslaughter is an inferior offense of second-degree *414 murder under MCL 768.32 is a question of law that this Court reviews de novo.”
People v. Jones, 860 N.W.2d 112 (Mich. 2014).
· cites it 33× “MCL 768.32(1) sets forth the general rule that a defendant is entitled to have the jury instructed on necessarily included lesser offenses.”
People v. Apgar, 690 N.W.2d 312 (Mich. Ct. App. 2005).
· cites it 26× “§ 768.32, instructions on cognate lesser offenses are impermissible because they do not provide a defendant with adequate notice that he might be charged with the lesser offense.”
People v. Wilder, 780 N.W.2d 265 (Mich. 2010).
· cites it 12× “Because defendant was charged with committing first-degree home invasion on the basis of committing a larceny offense, defendant was on notice that he needed to defend each element of a larceny crime.”
People v. Martin, 721 N.W.2d 815 (Mich. Ct. App. 2006).
· cites it 8× “The Court further concluded that the traditional lesser included offense test described above was consistent with prior case law and applicable to MCL 768.32. Id. at 357 . Nevertheless, the Court also recognized that, as with double jeopardy analyses, the controlling inquiry for…”
People v. Brown, 703 N.W.2d 230 (Mich. Ct. App. 2005).
· cites it 8× “ii On appeal, we address an issue of first impression: whether assault with intent to do great bodily harm less than murder is an inferior offense of assault with intent to commit murder within the meaning of MCL 768.32. *145 Defendant claims that the trial court committed error…”
People v. Smith, 733 N.W.2d 351 (Mich. 2007).
· cites it 4× “Regardless, in Cornell , the same majority that overturned White, Cooper, and now Robideau held that an offense is an "offense inferior to that charged in the indictment" for purposes of MCL 768.32(1) when "`the lesser offense can be proved by the same facts that are used to…”
People v. Reese, 647 N.W.2d 498 (Mich. 2002).
· cites it 9× “§ 768.32 prevents the Supreme Court from adopting the federal model for necessarily lesser included offense instructions and, if it does, whether such prohibition violates Const.”
People v. Membres, 191 N.W.2d 66 (Mich. Ct. App. 1971).
· cites it 17× “Rather, it serves to declare and make clear that a criminal accused may be found guilty of an offense different than the one charged in the indictment provided that offense is a lesser included offense or an attempt.”
— Mich. Comp. Laws § 768.32(1) — 85 cases
People v. Nyx, 734 N.W.2d 548 (Mich. 2007).
“[18] In summarizing Justice Coleman's dissent in Jones, we noted that Justice Coleman construed MCL 768.32 to only permit consideration of "necessarily included lesser offenses.”
People v. Cornell, 646 N.W.2d 127 (Mich. 2002).
“[MCL 768.32] simply speaks to the possibility that the jury may find the accused not guilty of an offense in the degree charged in the indictment while still allowing a guilty verdict of any inferior degree of such offense.”
People v. Smith, 731 N.W.2d 411 (Mich. 2007).
“STANDARD OF REVIEW Whether statutory involuntary manslaughter is an inferior offense of second-degree *414 murder under MCL 768.32 is a question of law that this Court reviews de novo.”
People v. Jones, 860 N.W.2d 112 (Mich. 2014).
“MCL 768.32(1) sets forth the general rule that a defendant is entitled to have the jury instructed on necessarily included lesser offenses.”
People v. Apgar, 690 N.W.2d 312 (Mich. Ct. App. 2005).
“§ 768.32, instructions on cognate lesser offenses are impermissible because they do not provide a defendant with adequate notice that he might be charged with the lesser offense.”
— Mich. Comp. Laws § 768.32(2) — 6 cases
People v. Jones, 860 N.W.2d 112 (Mich. 2014).
“MCL 768.32(1) sets forth the general rule that a defendant is entitled to have the jury instructed on necessarily included lesser offenses.”
People v. Cornell, 646 N.W.2d 127 (Mich. 2002).
“[MCL 768.32] simply speaks to the possibility that the jury may find the accused not guilty of an offense in the degree charged in the indictment while still allowing a guilty verdict of any inferior degree of such offense.”
— Mich. Comp. Laws § 768.32(l) — 1 case
People v. Cornell, 646 N.W.2d 127 (Mich. 2002).
“[MCL 768.32] simply speaks to the possibility that the jury may find the accused not guilty of an offense in the degree charged in the indictment while still allowing a guilty verdict of any inferior degree of such offense.”
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